Burrus v. City of Columbus

• Decision Date: 22 July 1898
• Citation: 31 S.E. 124,105 Ga. 42
• Parties: BURRUS et al. v. CITY OF COLUMBUS et al.
• Court: Georgia Supreme Court

31 S.E. 124

105 Ga. 42

BURRUS et al. v. CITY OF COLUMBUS et al.

Supreme Court of Georgia

July 22, 1898

Syllabus by the Court.

1. Where a railway company, by an act of the general assembly is duly authorized to construct and operate a side track of its railroad in a given street of a city, the fee to which street is in the state, a court of equity will not enjoin it from so doing, merely to prevent consequential damages to the property of a private citizen which is located upon such street.

2. Upon the hearing of an application for injunction to prevent alleged irreparable injury, it is not erroneous to refuse to grant the same, when neither the petition nor the evidence sets forth facts sufficient to enable the court to determine the necessity for an injunction.

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by G. J. Burrus and others against the city of Columbus and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

C. J Thornton and E. A. Thornton, for plaintiffs in error.

Jno. D. Little, F. D. Peabody, and C. E. Battle, for defendants in error.

FISH J.

At the trial the case was heard by the court upon the petition, demurrers, answers, and the evidence. Each of the several defendants having, in its answer, denied the charges of combination and confederacy, and no evidence being offered in support of the same; the Empire Mills Company having, in its answer, denied that it intended to lay the side track in question, and the plaintiffs offering no evidence to substantiate this charge; and the Central of Georgia Railway Company having admitted that it intended to build this track, and that at the time of the service of the temporary restraining order it had actually begun to do so,--the real issue, at the interlocutory hearing, was between the plaintiffs and the railway company. It is unnecessary to consider whether or not there is a misjoinder of parties defendant in the case, for, in our opinion, in no view of the case, as made by the petition or the evidence, were the plaintiffs entitled to an injunction. It is perfectly clear, from the evidence, that the railway company is duly authorized by the law to build and operate the side track in question. The fee to the streets in the city of Columbus is in the state. Dawson, Comp. pp. 470, 474; Kavanagh v. Railroad Co., 78 Ga. 271, 2 S.E. 636. By an act of the general assembly of this state, the Mobile & Girard Railroad Company was authorized to construct, maintain, and operate this side track. Acts 1890-91, p. 254. The evidence shows that, under and by virtue of a regular judicial sale, had in accordance with a decree of the United States circuit court for the Middle district of Alabama, the decree of the court confirming such sale, and a deed in pursuance thereof, executed on the 7th day of March, 1896, the Central of Georgia Railway Company became the owner of all the property, rights, and franchises of the Mobile & Girard Railroad Company. The right to construct, maintain, and operate this side track was a franchise of the Mobile & Girard Railway Company, and passed to and became a franchise of the Central of Georgia Railway Company, by virtue of the judicial sale and the decree of the court confirming the same. Railroad Co. v. Delamore, 114 U.S. 501, 5 S.Ct. 1009; People v. Kerr, 37 Barb. 393.

It is to be presumed, in the absence of any allegations or evidence to the contrary, that the defendant railway company is proceeding to avail itself of the rights conferred by this franchise in a legal manner and in compliance with the requirements of the law. It is therefore clear that it cannot be deprived of these rights by injunction. To hold that, upon such allegations as are contained in the plaintiffs' petition and such evidence as was offered in its support, the railway company can be prevented from building and operating this track, would be to hold that & court can destroy the lawful franchise of a railroad company, in order to prevent the consequential damages which will ensue to private property by reason of its exercise. Such is not the law. It is true that the legislature cannot confer upon a railroad company the power to take or damage private property without compensation, but no such question is made in the case at bar. The law applicable to cases where property is taken or damaged by the exercise of the power of eminent domain is not the law that is invoked in this case. So far as can be ascertained from the meager allegations of the petition and the scanty facts contained in the evidence offered to sustain, it the plaintiffs seem to be proceeding upon the theory that the laying and operating of the side track in the street upon which their property is located will be a nuisance, which will subject their property to irreparable injury, and that they are therefore entitled to an injunction which will perpetually prohibit the railway company from constructing the track. But that which the law authorizes to be done, if done as the law authorizes it to be done, cannot be a nuisance. 1 High, Inj. 767, and cases cited; Hinchman v....